Sunday, July 22, 2012

On May 7, 2012, the Montana Board of Medical Examiners voted to postpone consideration of whether Position Statement No. 20 should be vacated.[1] Position Statement No. 20 concerns "aid in dying," a euphemism for assisted suicide and euthanasia.[2] The reasons given for the delay included "to allow additional time for public input."[3]

On July 6, 2012, Montanans Against Assisted Suicide filed additional "public input" including a letter and a legal memorandum titled: "Summary of Legal Arguments Requiring Position Statement No. 20 to be Vacated as a Matter of Law."[4] The letter requested twenty minutes oral argument.[5]

On July 20, 2012, the Board held the postponed hearing. The Board acknowledged that it had received the above documents and also acknowledged the presence of Cory Swanson, attorney for Montanans Against Assisted Suicide. The Board did not allow Mr. Swanson to speak.

Saturday, July 21, 2012

The syllabus from the decision affirming Melchert-Dinkel's conviction is set forth below. To view the entire decision, click here.

"1. Minnesota Statutes section 609.215, subdivision 1, which criminalizes advising, encouraging, or assisting another to commit suicide, is not unconstitutionally overbroad under the First Amendment.

2. The First Amendment does not bar the state from prosecuting a person for advising, encouraging, or assisting another to commit suicide by sending coercive messages to suicide-contemplating Internet users instructing them how to kill themselves and coaxing them to do so."

MINNEAPOLIS (AP) — The Minnesota Court of Appeals on Tuesday affirmed the
convictions of a former nurse who scanned online chat rooms for suicidal people
then, feigning compassion, gave a British man and a young woman in Canada
instructions on how to kill themselves.

William Melchert-Dinkel, 49, of Faribault, acknowledged that what he did was
morally wrong but argued he had merely exercised his right to free speech and
that the Minnesota law used to convict him in 2011 of aiding suicide was
unconstitutional.

The appeals court disagreed, saying the First Amendment does not bar the
state from prosecuting someone for "instructing (suicidal people on) how to kill
themselves and coaxing them to do so."

Melchert-Dinkel's attorney, Terry Watkins, was not immediately available for
comment.

Court documents show Melchert-Dinkel searched online for depressed people
then, posing as a female nurse, offered step-by-step instructions on how they
could kill themselves.

Melchert-Dinkel was convicted last year of two counts of aiding suicide in
the deaths of 32-year-old Mark Drybrough, of Coventry, England, who hanged
himself in 2005; and 18-year-old Nadia Kajouji, of Brampton, Ontario, who jumped
into a frozen river in 2008.

He was sentenced to more than six years in prison but the terms of his parole
meant he would only be imprisoned for about a year. His sentence was postponed
pending his appeal, but at the time of sentencing, he was told that if his
convictions were upheld, he'd have seven days to report to jail.

In arguing to overturn the conviction, Watkins said his client didn't talk
anyone into suicide but instead offered emotional support to two people who had
already decided to take their lives.

Assistant Rice County Attorney Benjamin Bejar had argued that Melchert-Dinkel
wasn't advocating suicide in general, but had a targeted plan to lure people to
kill themselves. Prosecutors have said he convinced his victims to do something
they might not have done without him.

Bejar said Tuesday that prosecutors were pleased with the decision.

In a statement read at his sentencing last year, Melchert-Dinkel said he was
sorry for his role in the suicides and that he realized he had rejected a unique
opportunity to talk his victims out of killing themselves.

Tuesday, July 10, 2012

It has taken me a long time to read through the nearly 400 pages of the June 15 decision of the British Columbia Supreme Court on the issue of assisted suicide. I found reading it to be like a journey to a dark place, full of raw emotions.

The long and the short of the reasons for judgment issued by Justice Lynn Smith is that legal provisions in Canada prohibiting assisted suicide law are unconstitutional because they impede disabled people’s rights to life, liberty and security of the person.

The judge believes that having a disability or degenerative illness is a rational reason to want to die, and that those of us with disabilities should be helped to die if we can’t do it neatly or efficiently ourselves.

Justice Smith doesn’t appear to believe that people with disabilities and terminal illness are ever coerced, persuaded, bullied, tricked or otherwise induced to end our lives prematurely. She believes those researchers who contend there have been no problems in jurisdictions where assisted suicide is legal, and she rejects evidence suggesting there have been problems.She writes: “It is unethical to refuse to relieve the suffering of a patient who requests and requires such relief, simply in order to protect other hypothetical patients from hypothetical harm.”

I’ll have to mention that to some of my hypothetical friends who say they have been pressured by doctors, nurses and social workers to hypothetically “pull the plug.”

The same goes for all those folks who succumbed to the pressure; I guess they’re only hypothetically dead.

Sunday, July 8, 2012

July 6, 2012, Montanans Against Assisted Suicide (MAAS) filed documents with the Montana Medical Examiner Board for the purpose of vacating Position Statement No. 20, titled "Physician Aid in Dying." The documents filed included: "Summary of Legal Arguments Requiring Position Statement No. 20 to be Vacated as a Matter of Law," which states:

"Position Statement No. 20 puts physicians and/or the public at risk by encouraging them to engage in illegal and tortious conduct that could result in their being charged with a crime and/or sued. Statement No. 20 also puts vulnerable people at risk of being killed or steered to suicide by their heirs or predators. With these circumstances, the Board’s enactment of Statement No. 20 violates its duty to protect the public (and puts the Board itself at risk of liability)."

To view the above document in its entirety, read the text below or click hereto read the hard copy filed with the Board. Other documents filed with the Board included a cover letterand a proposed order.

The Text:

1. On March 16, 2012, the Board adopted a revised version of Position Statement No. 20, which refers to “aid in dying” as a “medical procedure or intervention.”[1]2. The term, “aid in dying,” means assisted suicide and euthanasia.[2]

3. On December 31, 2009, the Montana Supreme Court issued Baxter v. State, 354 Mont. 234 (2009), which addressed a narrow form of “aid in dying.” Baxter did not legalize “aid in dying,” although that fact is disputed by some proponents.[2]

4. Position Statement No. 20 implies that “aid in dying” is confined to “end-of-life” matters.[4] In Baxter, however, the plaintiffs sought to legalize assisted suicide for people who were not necessarily at the “end of life,” for example, an 18 year old who is insulin dependent.[5]

5. In the last [2011] legislative session, a bill seeking to legalize aid in dying, SB 167, was defeated.[6]

6. The Medical Examiner Board derives its power from the Administrative Procedure Act, §§ 2-4-101 to 2-4-711, MCA, and other statutes such as § 37-1-307, MCA, which defines the authority of Boards in general.[7] These statutes do not grant the Medical Examiner Board authority to interpret the meaning of a court decision such as Baxter.[8] These statutes do not grant the Board the power to enact new legislation, for example, to legalize “aid in dying” as a medical procedure or intervention.

7. Interpreting court decisions and enacting legislation are the province of the Judiciary and the Legislature, not the Board. With these circumstances, the Board had no authority to adopt Position Statement No. 20, which effectively interpreted Baxter and/or effectively enacted new legislation to legalize “aid in dying.” Position Statement 20 is null and void.

8. The Board’s lack of authority is a lack of subject matter jurisdiction and requires Position Statement No. 20 to be vacated to the extent that it purports to legalize “aid in dying” and/or refers to “aid in dying” as an “end-of-life” matter.

9. Position Statement No. 20 is also invalid and/or void in its entirety because it is a “rule” under the Administrative Procedure Act, which was adopted without attempting to comply with rulemaking procedures.[9]

10. Position Statement No. 20 is also invalid and/or void in its entirety because there was no oral argument scheduled for members of the public to speak prior to its enactment. § 2-4-302(4), MCA states: “If the proposed rulemaking involves matters of significant interest to the public, the agency shallschedule an oral hearing.” (Emphasis added). A matter is of “significant interest to the public” if the agency knows it “to be of widespread citizen interest.” In the case at hand, the record is overflowing with citizen input including more than 3000 signatures opposed to assisted suicide.[11] The Board knew of “widespread citizen interest” as a matter of law. The Board adopted Position Statement No. 20 without previously scheduling oral argument for the public. For this reason also, the statement is null and void.

11.Position Statement No. 20 is also null and void because it purports to expand a physician’s scope of practice to include “aid in dying.” This is the function of the Legislature, not the Board. Board of Optometry v. Florida Medical Association, 463 So.2d 1213, 1215 (1985).

12. Position Statement No. 20 puts physicians and/or the public at risk by encouraging them to engage in illegal and tortious conduct that could result in their being charged with a crime and/or sued. Statement No. 20 also puts vulnerable people at risk of being killed or steered to suicide by their heirs or predators. With these circumstances, the Board’s enactment of Statement No. 20 violates its duty to protect the public (and puts the Board itself at risk of liability).

13. For the above reasons, Position Statement No. 20 is null and void as a matter of law. It must be vacated and removed from the Board’s website."

* * *

[1] The revised statement [titled Physician Aid in Dying] says: "The Montana Board of Medical Examiners has been asked if it will discipline physicians for participating in aid-in-dying. This statement reflects the Board’s position on this controversial question. [paragraph break] The Board recognizes that its mission is to protect the citizens of Montana against the unprofessional, improper, unauthorized and unqualified practice of medicine by ensuring that its licensees are competent professionals. 37-3-101, MCA. In all matters of medical practice, including end-of-life matters, physicians are held to professional standards. If the Board receives a complaint related to physician aid-in-dying, it will evaluate the complaint on its individual merits and will consider, as it would any other medical procedure or intervention, whether the physician engaged in unprofessional conduct as defined by the Board’s laws and rules pertinent to the Board." [To view the statement of the Board's website, click here.][2] Model Aid-in-Dying Act, § 1-102(3), atwww.uiowa.edu/~sfklaw/euthan.html Note the letters “euthan” in the link. [3] See Greg Jackson Esq. and Matt Bowman Esq., “Analysis of Implications of the Baxter Case on Potential Criminal Liability,” Spring 2010 (“the Court's narrow decision didn't even "legalize" assisted suicide”), available athttp://www.montanansagainstassistedsuicide.org/p/baxter-case-analysis.html; statement by Dr. Stephen Speckart conceding that assisted suicide is not legal under Baxter (“[M]ost physicians feel significant dis-ease with the limited safeguards and possible risk of criminal prosecution after the Baxter decision"), at [the following link with a similar statement by Senator Anders Blewett] http://maasdocuments.files.wordpress.com/2011/07/blewett_speckhart_trans_001.pdf; statement by Senator Anders Blewett conceding that a doctor who assisted a suicide could be prosecuted under the Baxter decision (“under current law, ... there’s nothing to protect the doctor from prosecution”), athttp://maasdocuments.files.wordpress.com/2011/07/blewett_speckhart_trans_001.pdf; and The Montana Lawyer, November 2011 (featuring pro-con articles by Senator Blewett and Senator Jim Shockley), available athttp://www.montanabar.org/associations/7121/November%202011%20mt%20lawyer.pdf.[4] Id.[5] See opinion letter from attorney Theresa Schrempp and Dr. Richard Wonderly to the Euthanasia Prevention Coalition, October 22, 2009 (attaching the plaintiffs’ interrogatory answers with a definition of “terminally ill adult patient” broad enough to include “an 18 year old who is insulin dependent”). (Attached hereto at B-1 to B-3). [To view, click here][6] See Detailed bill information page, attached hereto at B-4. [To view, click here][7] For more information about the Administrative Procedure Act and other statutes, see Memorandum dated May 2, 2012, pp. 1-2, pp. 8-10. A copy of the Act and other statutes are attached thereto at A-1 through A-28[8] Id.[9] See Memorandum dated May 2, 2012, pp. 8-10. [To view citation, use link at note 7, above][10] § 2-4-102(12)(a). [11] Memorandum dated May 2, 2012, p. 3; attachments at A-37 to A-45. [To view citations, use links at note 7, above]

Sunday, July 1, 2012

Below, a letter to physicians responding to a prior "false and misleading" letter claiming that assisted suicide is legal in Montana. To see a hard copy of this letter as sent, click here.

Dear
Physician:

I represent
Montanans Against Assisted Suicide & For Living with Dignity. You may have
received a letter from Compassion & Choices, formerly known as the Hemlock
Society, dated June 5, 2012. The letter claims that assisted suicide, referred
to as "aid in dying," is legal under the Baxter decision issued by the
Montana Supreme Court on December 31, 2009. This is untrue. I urge you to read
the materials below or contact your own counsel for advice regarding the court's
decision in Baxter.